This morning Justice Pisirayi Kwenda delivered the judgment he had reserved in the case in which Moana (Mitchell Amuli) ‘s mother Yolanda Kuvaoga was seeking an interdict to stop the deceased’s father from burying her at Warren Hills Cemetary.
Justice Pisirai Kwenda ruled against Moana’s mother’s application and upheld the burial order that was issued by the registrar’s office which states that Moana will be buried at Warren Hills Cemetery.
Harare tabloid H-Metro posted part of Justice Kwenda’s ruling in a thread on Twitter. The judge said he didn’t find any legal basis for cancelling the burial order. Justice Kwenda delivered the following ruling:
Applicant filed the urgent chamber application seeking an interdict. Applicant is the biological mother and the first respondent is the biological father. Second respondent is the registrar of deaths and births.
… After listening to oral evidence the applicant’s lawyer conceded that this court can order the cancellation of the issues burial order through and application of review.
Issuance of a burial order is administrative action and can only be set aside by review.
In this case, the burial order was issued according to section 3 of the administrative justice act. In this particular case, the applicant hasn’t set out any points for review. She chose to apply an application for an interdict.
She was supposed to set out her application by first showing the cause of action.
I find NO legal basis for cancelling the burial order.
I also observe that this court cannot usurp the powers of the registrar and this application fails to lay a legal basis for the interference of this court with the registrar
The validity of the burial order stands because it was acquired legally applicant failed to lay a legal basis for the replacement of the burial order issued.
The relief sought could have been worded in a different she made it clear she doesn’t want Muslim religion to be applied in the burial of deceased because it would neglect and discriminate while respondent said he was one who was being discriminatory against the Muslim religion.
Those two statements captured the nature of the dispute between these two parents.
Where burial rites are concerned, an heir to the deceased has a say in making the decision of where they are to be buried, their surviving spouse, the nuclear family and extended family must sit down and discuss where the deceased will be buried cordially to maintain the dignity of the deceased.
There may be a need for legislative intervention to deal with disputes of this nature. Local and community bases solutions have proved to be effective in dealing with burial disputes.
I note that the parties didn’t make an undertaking of the law there has been no choice of law. I noticed that she didn’t live a Will didn’t state where she wished to be buried. The heir and executor are not yet known.
Amuli appeared genuine. Applicant didn’t place evidence that he had disrupted mourners.
It’s common practice that the deceased is bathed before burial and a court of law should not be called upon to decide what should be done at funerals to allow people drink beer or eat pork she is basking in the grandeur of the deceased’s alleged celebrity status.
It’s correct that the deceased was born to the Amuli family and it’s a constitutional value that cannot be taken away she identified with the customs of her family.
Amuli raise her and was her sole custodian and he chose the religion for her.
Applicant was absent from her daughter’s life from her infancy and it was Amuli’s constitutional right to choose.
A year that she didn’t speak to her father is nothing compared with the 25 years they were in good books.
The deceased didn’t openly renounce Islam from 2013 when she became an adult.
Suffice to say, the applicant didn’t make it clear or convince this court how the deceased’s lifestyle influences a solemn occasion like death.
I conclude that the burial order was correctly issued and there’s nothing wrong with its issuance it remains valid.
No evidence that she will be excluded from the burial rites. Application dismissed with costs.